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The case HLH Warenvertriebs GmbH and a further v Germany (Joined instances C-211/03, C-299/03 and C-316/03 to C-318/03) was decided because of the Court docket of Justice of your European Communities (Very first Chamber). one400

The applicants, HLH Warenvertriebs GmbH and an additional, supposed to import into Germany and market place selected items that were being available as food stuff health supplements within the Netherlands. They prepared to sector the goods also as foodstuff supplements. The applicant applied for advertising authorisation to market place the merchandise in Germany as foodstuff nutritional supplements. The candidates requested the German federal ministry for customer protection, food items and agriculture to undertake a general selection relating to advertising authorisations, pursuant to national regulation. The German Federal Ministry refused plus they brought proceedings right before the regional administrative court docket in opposition to this refusal. The court dismissed their steps. The key ground on which the proceedings were dismissed was that the solutions have been medicinal goods, not foodstuffs.

The candidates appealed on the greater administrative courtroom. This courtroom then stayed proceedings and referred the situation to your Court of Justice of the European Communities (“European Court”) to get a preliminary ruling pertaining to the interpretation of a number of provisions of Group legislation, particularly:-

The Local community code relating to medicinal products and solutions for human use (Parliament and Council Directive (EC) 2001/83);

The general ideas and needs of foods law, developing the eu Foodstuff Safety Authority and laying down processes in issues of foodstuff basic safety (Parliament and Council Regulation (EC) 178/2002);
and
The approximation of the laws from the member states concerning foods nutritional supplements (Parliament and Council Directive (EC) 2002/46).

The ecu Court docket made the decision:

In order to classify a product to be a medicinal merchandise or like a foodstuff, the many properties of the product had to be taken into consideration as recognized in the initial phase on the solution i.e. in which it absolutely was blended, the strategy by which it had been utilised and irrespective of whether with h2o or with yoghurt.

Regulation 178/2002 (No four previously mentioned) constituted a further set of regulations in relation to Council Directive (EC) 2002/46 (No five over).

It absolutely was only the provisions of Community legislation particular to medicinal items which applied to an item that contented similarly the disorders for classification being a foodstuff as well as the ailments for classification as a medicinal item.

The qualified authorities in member states needed to:-

use the pharmacological houses of the solution to determine, inside the mild from the likely capacities of the item, no matter whether it would, for the functions of the next subparagraph of artwork 1(two) of directive 2001/83 (No three above), be administered to human beings using a look at to making a professional medical analysis or to restoring, correcting or modifying physiological features in human beings.

establish the danger to health of human beings of working with this item within the context on the classification with the products as being a medicinal products.

An item which constituted a medicinal item within the this means of directive 2001/83 (No three over) could be imported into a further member state only upon acquisition of a advertising authorisation issued in accordance using the provisions of that directive, even wherever it absolutely was lawfully promoted for a foodstuff in another member point out.

The thought of ‘upper risk-free levels’ in art 5(1)(a) of directive 2002/46 (No five previously mentioned) was not of worth to the functions of drawing a distinction among medicinal items and foodstuffs.

In evaluating the challenges that foodstuffs or foodstuff supplements may possibly represent for human health by a member point out, the member point out has to keep in mind no matter whether there’s a nutritional have to have from the population of that member condition. Nevertheless, the absence of such a nutritional require did not in itself justify, either beneath art thirty EC (No one earlier mentioned) or under art 12 of directive 2002/46, a whole ban on advertising and marketing foodstuffs or meals dietary supplements lawfully created or placed on the industry in a different member state.